Public Comment

Honorable Mayor and Members of the Council:

As a business owner who chose to invest in an office move to downtown Berkeley more than two years ago, I have observed the community discussion on the proposed high rise development at Harold Way, noting with distress how the proposal has divided friends of good will and intention, and produced little by way of community consensus. As a land use lawyer and teacher let me suggest a solution, not entirely sympathetic to the property developer's perspective, but valid from the City's perspective of meeting public needs.

More than all but two other privately-owned parcels downtown, the 2211 site deserves treatment as a unique community asset. That is because it and the other two sites alone have been reserved for the high-rise development authorized in the downtown plan. High-rise development is promoted, in justification of its inevitable impacts, as the means to provide housing, create housing diversity, and realize investments in public transit. If only three sites downtown are to be permitted for such expansive use, they should serve more than the wealthy elements of the community. The developer's proposal unfortunately is so confined. 

Berkeley should draw from the examples of San Francisco and New York City and approve a project that includes between 30 and 40 percent of its units for those of modest income. Those are the ratios that San Francisco belatedly recognizes as justified to meet the housing needs of the entire community, and to attempt, equally belatedly, to ease the social friction created by that city's prior singular focus on market-rate housing. They also conform to New York City's practice, most recently evident in Mayor De Blasio's success in securing the sale of Stuyvesant Village on terms to ensure that private preference for wealthy rentals not eliminate Village housing for working and semi-professional residents. 

Three practical factors make "mixed residential" the highest and best use of 2211 Harold Way. The first is that all future residents of 2211(and downtown generally) will benefit by sharing their public space with a cross-section of the community. Our colleges make great investments to create this social diversity on their campuses; why should that investment not be extend to residential life afterwards? High-income workers will be better off with teachers or single parents at Berkeley High as their immediate neighbors. 

Second, a mixed residential use project will serve a higher community purpose than providing only for those who can afford monthly rentals in excess of $4,000. A mixed­ residential development makes more justifiable and acceptable the inevitable impacts that the project will entail, not least of which will be the years of disruption at the construction site and its downtown/Berkeley High surroundings. The trade-off, for example, of five rather than ten movie screens might be seen as worthwhile if the outcome concurrently prod uces needed affordable housing and not just that for the wealthy. 

Third, including a diversity of housing needs at 2211 Harold Way ensures that the moderate-income housing will actually get built. Housing fund contributions might make sense in smaller market-rate projects or other jurisdictions, but the hard fact remains that they have yet to produce actual housing in Berkeley. As the New Jersey Supreme Court aptly observed, "Courts do not build housing nor do municipalities. That function is performed by private builders." With an appropriate permit the builder of 2211can create the offsetting modest-income housing concurrently with that for its wealthy residents.* 

The developer will likely respond that 2211Harold Way is its project and that the City should respond to its stated profit-maximization purpose. The final environmental impact report (EIR) on the project includes a refutation of this false premise. If Members of the Council devote attention to any pages in the EIR, let me recommend pages 73-81 of the final, the comments of the retired Director of Long Range Planning at UC Berkeley, whose professional talents and integrity produced the successful approvals of UC Merced and its surrounding community. (The relevant pages are attached here.) As the commenter, Christopher Adams, points out, any development of the property will produce a profit; the City is not obligated to maximize that profit, but instead balance that profit against the project's ability to meet public community needs. 

In conclusion, let me suggest that the City Council approve a project -- one that avoids unnecessary harm such as blemished Campanile Way views -- with sufficient onsite community housing benefit to justify the unavoidable impacts of such intense development.